Hospital medical staffs are among the most powerful, yet least regulated entities in medicine. Most doctors must carry medical staff privileges in one or more facilities in order to practice. The medical staff is self-policing and is independent of the hospital. Its functions include reviewing the care provided by its physician members to patients, and acting as a liaison between the hospital administration and individual physicians. As a peer review body, the medical staff is responsible for shielding patients from incompetent or unstable physicians; at the same time, by controlling physicians' access to both the patients and the facilities, the medical staff wields the power to destroy a physician's professional career.
A physician has legal rights which protect his or her medical staff privileges. In government-owned hospitals, these rights may be protected under the U.S. constitution, but in privately operated hospitals, constitutional rights may not apply, but California statutes also guarantee a fair procedure. Cases in which the power of the medical staff was abused for discriminatory or other improper motives led some states' courts and legislatures to gradually extend legal protections to physicians whose staff privileges are attacked. Since the 1950's, California law has increasingly upheld the physician's fundamental right to fully practice his or her profession. This right mandates fair procedures in medical staff disciplinary actions. Fair procedure includes, at a minimum, adequate notice of the charges upon which the action is based and the opportunity to present evidence on one's own behalf to an unbiased decision maker. The law also provides for the right to challenge any decision restricting or terminating privileges in the California courts. While many other states have begun to address these issues, there is wide variance from state to state in the extent to which physicians' rights to practice in the hospital are able to be protected under the law.
In every state, physicians continue to run the risk of being maliciously targeted or "executed by peer review". At every stage of the disciplinary process, the accused physician is at a tremendous disadvantage. For the accused physician, the disciplinary hearing process is like being on trial for malpractice with one's own colleagues acting as witnesses, prosecutors and judges. Dozens of charges may be leveled at one time. Physicians usually have limited or no insurance coverage for the legal expenses of defense or recourse for the economic impact if the physician should not prevail. There is little opportunity to obtain discovery of all evidence before it is presented. The medical staff committee selects the jury panel members and hearing officer (subject to the physician's challenges for bias, which are often overruled). There is wide use of hearsay evidence, including medical opinions of experts who cannot be compelled to appear to be cross-examined. There is frequently a denial of the assistance of counsel in the initial “informal” hearing. In some states, witnesses in a peer review hearing may knowingly give false testimony, enjoying absolute immunity from civil suits for slander or malicious injury. The hospital and medical staff members are also immune from suit under federal law, unless it is proven that they acted in bad faith when taking the peer review action.
A negative outcome for the physician in a medical staff peer review is a death knell. By law in most states (including California), disciplinary actions must be reported by the hospital to both the state Medical Board and the National Practitioner Data Bank, a nationwide database accessible to hospitals and managed care organizations. The state Medical Board may commence its own investigation, finding the physician an easy target because damning evidence has already been compiled in the medical staff hearing. Although the Medical Board may decide not to prosecute, it will do nothing to aid the physician to clear his or her name, regain staff privileges or obtain redress for the economic, professional and emotional injuries which have been sustained. The physician's reputation and career may be ruined.
California physicians' legal rights lawyers at the Law Firm of Marvin Firestone, MD•JD & Associates have been helping doctors, nurses, psychologists and others defend their professional licenses and staff privileges for over 33 years. Our medical-legal experience may mean the difference in a professional’s career. By getting involved immediately after the physician knows of an investigation by a medical staff peer review committee, we can help to control the investigative and formal hearing process, develop the evidence needed to defend the action, and uncover the true facts.
If you are the target of an investigation by a medical staff peer review committee, don't delay seeking the advice and counsel of a professional. Fill out our online form or call 1-800-LAW-MDJD (1-800-529-6353) for a free phone consultation to speak to an attorney about your options.
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